https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6752

Board of Management of Nzoia Girls Secondary School v Makanga t/a Basoyi Enterprises (Civil Appeal E041 of 2025) [2026] KEHC 6752 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6752 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E041 of 2025 MS Shariff, J May 14, 2026 Between Board of Management of Nzoia Girls Secondary School Appellant and Patrick M Makanga t/a Basoyi Enterprises Respondent Ruling A. Background 1.The respondent herein had successfully sued the appellant in Bungoma MCCC E327/2022, whereat he craved for payment of a sum of Ksh 590,785 on account of none payment for goods supplied to the latter by the former. 2.The appellant was aggrieved by the judgment of the subordinate court and hence lodged this appeal. B. Preliminary Objection 3.In reaction to the appeal, the respondent filed a notice of preliminary objection dated 18th July 2025 wherein he raised three grounds as outlined hereunder:-1.The appeal herein is bad in law for having been filed out of time without leave of the Honourable Court and consequently ought to be struck out.2.The appeal herein is consequently bad in law and ought to be struck out and or dismissed altogether with costs to the Respondent the reason for want of jurisdiction on the part of the Honourable Court.3.The appeal is bad in law and ought to be struck out and or dismissed altogether for otherwise being an abuse of process of the court and law. A. Submissions 4.On 19.11.2025 this court directed that the respondent’s preliminary objection be canvassed by way of written submissions and timelines were given. Whereas the respondent duly filed his submissions, the appellant did not. C.1. Respondent’s submissions 5.The respondent submits that section 79G of the Civil Procedure Act prescribes in mandatory terms a limitation period of 30 days for lodging an appeal against a decision of the original court with the exceptions in instances where the trial court certifies that any particular period of time was necessary for the preparation and delivery to the appellant of the decree or order or where the court upon sufficient cause being shown enlarges the time for filing an appeal. 6.The respondent points out that whereas the impugned decision was delivered on 4.2.2025 and any appeal against it ought to have been filed by 4.3.2025 yet the appeal herein was filed on 12.3.2025 without any certificate for delay nor leave of court. It is the respondent’s position that the appeal herein was an afterthought. Reliance has been placed on the cases of Matiri & Another Vs Matiri (2025) KEELC 8287(KLR) and Pentagon Communications Limited Vs National Land Commission (2025) KECA 1304 (KLR), where the courts held that an appeal filed out of time is both a nullity and a jurisdictional issue as a court cannot arrogate on itself such jurisdiction that it did not have. D. Analysis And Determination 7.I have considered the respondent’s preliminary objection and his submissions and the sloe issue that emerges for determination is whether his preliminary objection is sustainable. 8.A preliminary objection is defined by The Black’s Law Dictionary 10th Edition as an objection that. If upheld, would render further proceedings in a tribunal unnecessary. It essentially seeks to dismiss the case at an early stage, typically before the merits of the case are heard. 9.The landmark case of Mukisa Biscuits Manufacturing Vs West End Distributors (1969) EA 696, the court defined a preliminary objection as follows:“… a point of law that has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit..” 10.Sir Charles Newbold P pronounced himself in the afore cited case as follows;-“….. A preliminary objection is in the nature of what used to be a demurrer. It raises pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion….” 11.A Similar pronouncement was made by the Supreme Court in the case of Hassan Ali Joho Vs Suleiman Shabal & 2 others SCK Petition No 10 of 2013 ( 2014) eKLR. 12.It is evident that the appellant herein filed it’s memorandum of appeal out of time by 8 days and going by the authorities cited by the respondent, the appeal is nothing but a nullity ab initio. 13.As right elucidated by the respondent, this court derives its jurisdiction from the Constitution, Statues or both. It cannot arrogate itself a lacking jurisdiction. The jurisdiction of this court to entertain appeal from the subordinate courts is denoted to it by section 79G of the Civil Procedure Act Chapter 21 Laws of Kenya which state that:-“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 14.The appellant herein has failed to properly invoke the jurisdiction of this wherefore this court has no option but to down it’s tools least it acts in vain. In making this finding, I place reliance on the case of Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Limited & 2 Others ( 2012) eKLR, where the Supreme Court held as follows:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only e xercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 15.On the balance I do find that the respondent’s preliminary objection is sustainable and I therefore strike out the appeal herein for having been filed outside the limitation period without leave of this court. 16.The respondent is awarded costs assessed at Ksh 15,000. 17.This file is hereby marked as closed. DELIVERED, SIGNED AND DATED AT MAKADARA THIS 14TH DAY OF MAY 2026.MWANAISHA.S. SHARIFFJUDGEIn the presence of:N/A by Gilbert Tarus Advocates for the appellantMr Shifwoka for RespondentPeter Machoni – Court Assistant